There are six vacancies on the U.S. Court of Appeals, with two more vacancies certain to occur and many more likely to happen before January 2021 as older members of the courts eager to be replaced by center-right judges take “senior status.” Each is nearly as important to preserving liberty, individual rights and the rule of law as a Supreme Court vacancy, though many outside the legal community don’t understand this.
There are 48 nominees for district-court positions awaiting action by the Senate Judiciary Committee or the Senate as a whole. Another 12 nominees are waiting offstage. Increasingly, judges at this level of the judiciary are claiming the right to dictate national policy by way of injunctions binding the entire country, rather than only the district to which they were appointed.
Most pressing are the vacancies on the often-overruled U.S. Court of Appeals for the 9th Circuit, and the 2nd Circuit has two vacancies that, when nominees are selected and confirmed, will flip that circuit’s composition to a majority of Republican presidents’ nominees.
It is a measure of President Donald Trump’s disdain for the long-rumored assault on his companies or family from the U.S. attorney’s office for the Southern District of New York that he allowed the process of filling other vacancies on the 2nd Circuit to drag on for months, decisive as that court might be for appeals for politicized rulings against his interests. A fair conclusion is that the president doesn’t think he’s in legal peril. He never believed it about what he called “the Russia hoax,” and if he believed he was vulnerable in a jurisdiction answering to the 2nd Circuit, he would have put a spark under his judge-picking team long ago. But his confidence ought not to delay filling the vacancies.
These judicial nominees are the Senate’s most important task, and Senate Majority Leader Mitch McConnell, R-Ky., and Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., have patiently and persistently worked to address the backlog and change rules to allow the federal bench to be as populated as quickly as the White House allows, given the glacial pace of new nominees.
The Senate has other urgent business. The Finance Committee is about to take up crucial retirement-savings reforms that could impact tens of millions of Americans annually. That effort could creatively address the housing needs of seniors by allowing them to use tax-sheltered savings to pay off mortgages or secure senior living arrangements without triggering taxable events. That same committee and others have work to do on the soaring costs of some prescription drugs and on infrastructure, as well as the annual battle to adequately fund the military. The Senate Intelligence Committee must work with the executive branch to persuasively educate our allies - Britain, primarily - and the American public on the threats that Chinese telecommunications giants Huawei and ZTE pose to security global networks.
Yet that committee, charged with oversight of the intelligence community and thus with countless urgent issues and tasks, deemed it necessary to subpoena Donald Trump Jr. as a sort of final ritual in the opera of collusion delusion that has gripped the country since the 2016 presidential election. We need to know if this latest subpoena is simply a flexing of muscles by staff frustrated by years of fruitless digging that was rendered obviously irrelevant by the work of special counsel Robert Mueller and his conclusion that no conspiracy occurred between Russia and Donald Trump, his family or his campaign team.
The subpoena is a maddening coda especially for those who urged that the administration cooperate with the special counsel and that Mueller not be fired or in any way impeded. (Mueller wasn’t. In fact, all the dense blocks of innuendo-filled prose in Part II of the Mueller report could not obscure that the president cooperated to an unparalleled degree with the special counsel.)
With all this real work to be done and military and national security matters to be superintended, Intelligence Committee Chairman Richard Burr, R-N.C., and a majority of his committee colleagues still felt that one more whack at Donald Trump Jr. was necessary.
It isn’t. No matter what the committee tells itself. Outside of #resistance cable television pundits and Bizarro Twitter, “no collusion/no obstruction” is the verdict that was rendered by the attorney general and accepted by the public, a verdict that the Senate GOP especially should know it ignores at the peril of its majority in 2021.
Hugh Hewitt is a columnist with The Washington Post.